Petronila B.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 4, 2017

0120143002 (E.E.O.C. Jan. 4, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Petronila B.,1
Complainant,

v.

Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120143002

Hearing No. 510-2013-00427X

Agency No. ATL-12-0805-SSA

DECISION

Complainant filed an appeal from the Agency’s final order dated October 9, 2014, finding no
discrimination with regard to her complaint alleging employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In her complaint filed on September 26, 2012, which was later amended, Complainant alleged
discrimination based on national origin (Hispanic), color (dark), age (over 40), and in reprisal
for prior EEO activity when she was subjected to harassment in that:

(a) On March 14, 2012, management conducted a Performance Assessment and
Communication Systems (PACs) discussion with her, and she was “written up” for lack
of work production;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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(b) On March 19, 2012, management did not respond to her email alleging harassment;

(c) On April 30, 2012, management held another meeting with her to discuss her work
production level;

(d) On June 22, 2012, she was placed on a performance plan;

(e) On June 29, 2012, management issued her a detailed letter explaining her mistakes,
which she states were minor and she had not received training to help her learn from
her mistakes;

(f) On July 9, 2012, management withheld her promotion to the GS-11 level for an
undisclosed amount of time, indicating it could be withheld up to two years;

(g) On August 9, 2012, she was again “written up” by management, and denied a
promotion to the GS-11 level;

(h) From June, 2012, to the present, management intentionally held back review sheets in
order for her to continue to make the same errors;

(i) From August, 2012, to the present, management has not evenly distributed the work
amongst her and her coworkers;

(j) Management continues to ignore her requests for assistance with her high volume of
workload, yet, they continue to say her work was processed in an untimely manner.
Her most recent requests for help were December 28, 2012, January 18, 2013, and
January 22, 2013;

(k) On January 18, 2013, management attacked her integrity and character when she was
“written up” for not signing out correctly on the time sheets. Management did not
speak to her prior to issuing her an Official Reprimand;

(l) While she was in training from January 28, 2013, to February, 2013, management did
not stop her mail from coming in and did not assign anyone to work her desk;

(m) On February 15, 2013, management called her to a meeting to take disciplinary action
against her for not signing in/out correctly on the time sheets. Subsequently, on March
4, 2013, she was issued a two-day Proposal to Suspend for falsifying a time sheet; and

(n) On March 25, 2013, management waited until the end of the day when she was walking
out the door to issue her a memorandum informing her that she was suspended for two
calendar days, effective March 26-27, 2013.

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Upon completion of the investigation of the complaint, Complainant requested a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). On August 8,
2005, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

We find that on April 25, 2014, the AJ properly denied her April 12, 2014 motion for
extension of time to file her opposition to Agency’s March 6, 2014 motion for summary
judgment due to her failure to show good cause to grant her motion. Complainant indicated
that she was on detail to the Jacksonville Office; she was not at her residence to receive her
mail; and as a result, she did not receive the Agency’s March 6, 2014 motion until April 10,
2014. However, the AJ noted that Complainant was notified of the deadlines for submissions
as set forth in the Acknowledgement and Order and that she was also aware that her response
to the Agency’s motion for summary judgment would be due by March 23, 2014, as set forth
in the Order issued by the AJ on January 15, 2014. Specifically, the AJ stated that
Complainant knew she would not be at her residence during the timeframe at issue and she
should have taken steps to ensure that she promptly received any correspondence sent to her
address of record or that the Agency and the AJ had another address at which to contact her,
or she should have filed her email address for the record, but she failed to take such actions.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time period, Complainant was employed as a
Claims Representative, GS-9 at the Agency’s New Port Richey, Florida District Office.

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With regard to claims (a) and (c) - (f), management indicated that Complainant was promoted
to her GS-9, career ladder position in August, 2011, and she would be promoted to the GS-11
level only if she demonstrated the ability to perform that level work. Specifically,
Complainant’s first level supervisor (S1) indicated that during the relevant time period,
Complainant’s performance was unsatisfactory and as a result S1 conducted the PACs and
performance meeting; placed her on a performance plan; and denied promotion to the GS-11
level. S1 also stated that Complainant received training on a number of occasions, but she still
did not perform well. S1 stated that Complainant had to be reminded several times in order to
complete her assignments, she routinely requested assistance before first doing her own
independent research of the Agency’s guidelines, and she had difficulty accepting feedback
from her mentor and management. S1 indicated that Complainant’s work contained errors and
S1 and her mentor had to complete her work on occasions. Due to Complainant’s significant
performance deficiencies, S1 stated that management decided not to promote Complainant to
the GS-11 level. S1 denied harassing Complainant as alleged. Complainant does not contest
the fact that her work product had errors and she required assistance to do her work during the
relevant time period. Furthermore, she does not provide any specific individuals who were
treated more favorably than she was concerning these claims.

With regard to claim (b), Complainant claimed that she sent her email to her manager alleging
harassment on the part of S1 and the manager failed to respond to the email. The record
indicates that in her March 19, 2012 email, Complainant complained about her PACs,
described in claim (a), to the manager but did not allege she was subjected to harassment by
S1. The record also indicates that the manager immediately responded to Complainant’s email
at issue by indicating in an email that the manager reviewed the PACs at issue prior to S1’s
discussion with her.

With regard to claims (g) and (h), S1 indicated that as part of the training plan, Complainant
was instructed to provide review sheets daily on all cases that she worked and give the review
sheets to her mentor who checked them for any errors. S1 stated that Complainant failed to
provide all her review sheets to the mentor and instead of seeking help from the mentor or her
supervisor as instructed, she asked questions of other people. Thus, stated S1, Complainant
was issued a counseling memorandum on August 9, 2012, for her failure to follow
management directives. S1 indicated that Complainant was not cooperating with the
performance plan and the denial of her promotion to the GS-11 level was not based on
discrimination as alleged. Complainant acknowledged that she failed to turn in the review
sheets on her three cases during the relevant time period.

With regard to claims (i) and (j), management denied assigning the work unevenly among
Complainant and her coworkers. Specifically, management indicated that workloads were
assigned to Claims Representatives, including Complainant, using a system that assigned cases
categorized by letters of the alphabet in a way that provided each employee with an even
workload. Management indicated that Complainant’s workload was consistent with other
employees in the unit and in fact, most paper work was assigned to the other unit.
Furthermore, stated management, during her training plan, Complainant’s assigned workload
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was in fact reduced and she was given assistance when it was necessary. Complainant failed to
identify any individuals who were treated favorably concerning workloads.

With regard to claims (k), (m), and (n), Complainant’s second level supervisor (S2) stated that
S2 reprimanded Complainant because she kept signing in and out incorrectly on the time
sheets. Complainant’s manager also stated that management previously instructed its
employees, including Complainant, about Agency’s sign in/out policy in January and
February, 2012. The record reflects that S1 sent emails to his employees reminding them of
the sign in/out policy on January 5, and February 1, 2012. The record also clearly reflects
that Complainant signed her name acknowledging her attendance in staff meetings held on
January 25, and December 11, 2012, when she was notified of the Agency’s sign in/out policy.
Complainant does not dispute the fact that she failed to sign in/out correctly during the relevant
time period. Although Complainant indicated that others in the office had signed in/out
incorrectly at one time or another, she failed to identify any specific individual to support her
claim. S1 stated that Complainant was issued a proposal to suspend and then ultimately
suspended on March 25, 2013, for her failure to follow Agency’s policies regarding time and
attendance on numerous occasions. The manager indicated that there was no office policy as
to when to issue an employee a disciplinary action.

With regard to claim (l), management indicated that for her training at issue, Complainant was
not away from the office; rather, her training was from 9 am to 1:30 pm. Although
Complainant claimed that her training did not actually end until almost 3 pm, she nevertheless
acknowledged that she had time to work from 7 am – 9 am before her training and after the
training. S1 also indicated that there was no office protocol concerning mail for employees
who were away for training. Complainant does not identify any employees who were treated
more favorably under similar circumstances.

After a review of the record, the AJ stated that Complainant failed to establish the severity of
the conduct in question such as to state a claim of harassment or that it was related to any
protected basis of discrimination. The AJ also indicated and we agree that Complainant failed
to provide any evidence that she was in fact satisfactorily performing the duties of her position
and/or at a GS-11 level and was complying with Agency’s established policies and procedures,
as described in this decision. Furthermore, we also agree with the AJ that Complainant failed
to show that there were any similarly situated employees not in her protected groups who were
treated differently under similar circumstances. Based on the foregoing, we find that
Complainant failed to show that the Agency’s actions were motivated by discrimination as she
alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

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RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 4, 2017
Date